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2011 DIGILAW 4873 (MAD)

Mohanraj v. S. Jayalalitha

2011-12-20

P.P.S.JANARTHANA RAJA

body2011
Judgment :- 1. The appeal is preferred by the claimant against the order and decree dated dated 06.08.2004 made in MCOP No.703 of 2002 by the Motor Accident Claims Tribunal (I Additional District Judge), Erode. 2. Background facts in a nutshell are as follows: The injured-Mohan Raj met with motor vehicle accident on 19.09.2001 at about 07.00 p.m. While he was standing with his moped bearing registration No.TN-33-U-9622 on the southern side of East West Uttukuli-Tiruppur Road, near Plastic company, a car bearing registration No.MDF-4755 belonging to the first respondent and insured with the second respondent-Insurance company came in a rash and negligent manner with high speed and hit the claimant. Due to the said impact, the claimant sustained fracture and multiple injuries all over the body. Immediately, he was admitted in Government Hospital, Tiruppur and then, he was shifted to T.M.F. Bhospital, Tiruppur for further treatment. He claimed a sum of Rs.5,00,000/-as compensation. The second respondent-Insurance Company resisted the claim. On pleadings the Tribunal framed the following issues:- "1. Whether the accident had occurred due to the rash and negligent driving of the driver of the first respondents car or not? 2. What is the compensation the claimant is entitled to?" After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to rash and negligent driving of the driver of the first respondents car, which was insured with the second respondent-Insurance company, and awarded a compensation of Rs.92,330/-with interest at 9% per annum from the date of petition and the details of the same are as under:- Permanent disability Rs. 37,500/- Pain and sufferings Rs. 5,000/- Medical expenses as per Exs.P11 & P12 Rs. 49,200/- Travellingexpenses Rs. 630/- Total... Rs.92,330/- Aggrieved by that award, the claimant has filed the present appeal for enhancement. 3. The learned counsel appearing for the appellant/claimant questioned only quantum of compensation awarded by the Tribunal and submitted that the Tribunal is wrong in not awarding compensation under the head loss of amenities and loss of income during treatment period and the amount awarded under various heads is very low and the Tribunal has not followed the principles of assessment before passing the award. Therefore, the order passed by the Tribunal is not accordance with law and it is a fit case for enhancement. 4. Therefore, the order passed by the Tribunal is not accordance with law and it is a fit case for enhancement. 4. Learned counsel appearing for the second respondent-Insurance company submitted that the Tribunal had considered all the relevant materials and evidence on record and came to the right conclusion and awarded a just, fair and reasonable compensation. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed. 5. Heard the counsel. On the side of the claimant, P.Ws.1 to 3 were examined and documents Exs.P1 to P20 were marked. On the side of the second respondent-Insurance company, no one was examined and no documents were marked to substantiate their claim. P.W.1 is the claimant. PW2-Appusamy is an eye witness to the occurrence. PW.3 is the Doctor Sachithanandam. Ex.P1 is the copy of the first information report. Ex.P2 is the copy of the motor vehicle Inspectors report relating to the car. Ex.P3 is the copy of the motor vehicle Inspectors report relating to the moped. Ex.P4 is the copy of rough sketch. Ex.P5 is the copy of the observation mahazar. Ex.P6 is the copy of the wound certificate. Ex.P7 is the copy of charge sheet. Ex.P8 is the copy of judgment. Exs.P9 and P10 are the copies of discharge summary. Exs.P11 and P12 are medical bills. Ex.P13 is the doctors notes. Ex.P14 are photographs and negatives. Ex.P15 is the xerox copy of the School transfer certificate. Ex.P16 is the xerox copy of the driving licence of the claimant. Ex.P17 is the X-ray. Ex.P18 is the Ambulance receipt. Ex.P19 is disability certificate. Ex.P20 is X-ray. The Tribunal, after considering the oral and documentary evidence, came to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the first respondents car and the finding is based on valid materials and evidence. 6. At the time of the accident, the claimant was aged about 27 years. He was working as Weaver in Venkidu Power Loom Factory, Chinnakadapalayam and was earning Rs.4000/- per month. PW1- claimant deposed in his evidence that a case in Crime No.292/2001 under Sections 279 and 337 IPC has been registered against the driver of the car. He further deposed that due to the accident, he sustained fracture on his right knee, right leg below knee and injuries all over the body. PW1- claimant deposed in his evidence that a case in Crime No.292/2001 under Sections 279 and 337 IPC has been registered against the driver of the car. He further deposed that due to the accident, he sustained fracture on his right knee, right leg below knee and injuries all over the body. mmediately, he was admitted in Government Hospital, Tiruppur, and later he was treated in T.M.F. Hospital from 19.09.2001 to 29.10.2001, where he had undergone surgery and screws and plate were fixed. Finally, he took treatment in Ganga Hospital, Coimbatore. He further deposed that due to the fracture in his right knee and right leg below knee, the movement of his right leg was completely restricted and he was unable to walk, stand and sit as before. PW3-Dr.Sachithanandam, who examined the claimant, deposed that the claimant had sustained fracture in his right knee, due to which his movement has been restricted and he cannot fold his right leg, and considering the same, he fixed the disability at 30% and issued Ex.P19 disability certificate. After considering the above evidence, the Tribunal fixed the disability at 25% and awarded a sum of Rs.37,500/-towards permanent disability. The learned counsel appearing for the claimant submitted that the Tribunal is wrong in awarding Rs.37,500/- towards 25% permanent disability i.e. for Rs.1,500/-per percentage of disability. Normally the Courts award Rs.1000/- to Rs.2000/-for 1% disability. Taking into consideration the fact that the claimant sustained right leg fracture and screws and plates were fixed and also the evidence of PW.3-Doctor, this Court is of the view that it would be reasonable to award Rs.2,000/-per percentage of disability. If Rs.2000/- is awarded for 1% disability, for 25% the amount comes to Rs.50,000/-towards permanent disability as against Rs.37,500/-awarded by the Tribunal. The Tribunal has awarded Rs.5,000/-towards pain and sufferings, which is very low. The claimant took treatment in three hospitals from 19.09.2001 to 29.10.2001. Considering the same, it would be reasonable to award Rs.15,000/-towards pain and sufferings. The Tribunal has awarded Rs.49,200/-towards medical expenses. It is an actual expenditure incurred by the claimant and to prove the same, Exs.P11 and P12 were marked. Considering the same, the amount awarded under this head is very reasonable and the same is confirmed. Considering the same, it would be reasonable to award Rs.15,000/-towards pain and sufferings. The Tribunal has awarded Rs.49,200/-towards medical expenses. It is an actual expenditure incurred by the claimant and to prove the same, Exs.P11 and P12 were marked. Considering the same, the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs.630/-towards travelling expenses, which is very low and it would be reasonable to award Rs.5,000/-under this head as against Rs.630/-awarded by the Tribunal. The learned counsel appearing for the claimant submitted that the Tribunal has not awarded any amount towards extra nourishment and loss of amenities. It is clear that the claimant took treatment for 53 days as in-patient. Considering the same, I am of the view that it would be reasonable to award Rs.5,000/-under each head i.e. Extra nourishment and loss of amenities. The Tribunal has not awarded any amount towards loss of income during the treatment period. Considering the period of treatment and the nature of injuries sustained, it would be reasonable to award Rs.10,000/-towards loss of income during treatment period. The Tribunal has fixed the rate of interest at 9% p.a from the date of claim petition. The accident has occurred on 19.09.2001. Keeping in view the prevailing rate of interest at the relevant time and the date of award, the rate of interest awarded by the Tribunal is confirmed. The details of modified compensation as per the above discussion are as under: Permanent disability Rs. 50,500/-Pain and sufferings Rs. 15,000/-Medical expenses as per Exs.P11 & P12 Rs. 49,200/- Travellingexpenses Rs. 5,000/-Extra Nourishment Rs. 5,000/-Loss of amenities Rs. 5,000/-Loss of income during treatment period Rs. 10,000/- Total... Rs.1,39,000/-Less the amount already awarded Rs. 92,330/- Enhanced compensation Rs. 46,670/- Therefore, the claimant is entitled to the enhanced compensation of Rs.46,670/-with interest at 7.5% from the date of claim petition. 7. The second respondent-Insurance company is directed to deposit the enhanced compensation of Rs.46,670/- with interest at 7.5% from the date of petition within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the appellant-claimant is permitted to withdraw the same on proper application. 8. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.